Okenyo Omwansa George and Another v The Attorney General and two others
High Court, at Nairobi – Constitutional and Human Rights Division
D.S Majanja J
March 29, 2012

"In order to achieve a just society that meets the expectations of Kenya, legal services offered by advocates must be available and the people must have the necessary information to access these services, a ban on advertising by advocates is inimical to these broad objectives of the Constitution"

The High Court has held that a complete ban of advertising by advocates is unconstitutional and inconsistent with Articles 46(1) and 48 of the Constitution. This followed a petition to the High Court to challenge the requirement of newly admitted advocates to set up independent legal practice and to challenge the prohibition against advertising in the legal profession.

The brief background to this petition was that the petitioners who are advocates of the High Court of Kenya raised two issues. One was with regard to section 32 of the Advocates Act (Cap. 16) which prevents an advocate from engaging in practice on his own behalf either full-time or part time unless he has practiced in Kenya continuously on a full-time basis for a period of not less than two years after obtaining the first practicing certificate in a salaried post. This is either as an employee in the office of the Attorney General or an organization approved by the Council of Legal Education or an advocate who has been engaged in continuous full-time legal practice in Kenya for a period of not less than five years.

Secondly, the petitioners averred that rule 2 of the Advocates (Practice) Rules of the Advocates Act barred advocates from advertising. The said law specifically provides that, no advocate may directly or indirectly apply for or seek instructions for professional business, do or permit in carrying on his practice any act or thing which can be reasonably regarded as advertising or as calculated to attract business unfairly.
The Submissions
It was the petitioners’ case that since their enrolment, they have not been able to start their own private practices due to unconstitutional constraints and limitations imposed by section 32 of the Advocates Act. They argued that section 32 of the Advocates Act subjected newly admitted advocates to slavery, servitude and forced labour. They also argued that section 32 derogates their rights as guaranteed under Article 25 (b) and 30 of the Constitution which protects against slavery or servitude and prevents against forced labour. The petitioners relied on the definition of forced labour from the International Convention on Forced Labour 1930 (No. 29) as all work or services which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. This law forms part of our law via Article 2(5) of the Constitution which provides that international law shall form part of the laws of Kenya.

They also submitted that rule 2 of the Advocates (Practice) rules which bars against advertising is in conflict, inconsistent and contravenes Article 35(b) of the Constitution. Article 35(b) clearly states that every citizen has the right to the correction or deletion of untrue or misleading information that affects the person. Further, it was submitted that the rule was in contravention of constitutional provision on consumer rights in Article 46 of the Constitution.

The petitioners also emphasizedthat prohibition against slavery and forced labour has attained the force of law and is therefore part of general principles of international customary law due to the operation of the principle of universality.

On rule 2 of the Advocates (Practice) Rules, the petitioners submitted that Article 46 of the Constitution provides for consumers right to information to gain the full benefit of goods and services offered by either a public or a private person. They argued that legal services are included in the definition and by prohibiting advertising, rule 2 essentially suffocates and constrains a consumer’s right to have access to information regarding where, when and from whom and how to get the services of an advocate or even what issues can be dealt with by an advocate.

Other submissions were that the consequence of non- advertisement by advocates is that the public is left in the dark and this denies it access to justice which is a right guaranteed under Article 48 of the Constitution. They argued that a law that denies the public information and therefore access to justice is unconstitutional. They relied on Article 35 of the Constitution which provides for the right to access to information.

The respondents opposed the petition. On the issue of section 32,counsel the first respondent submitted that the legal profession is a calling and one of its core functions is to offer legal services to the public. He further contended that it is a regulated profession and it operates within a statutory regime. He contended that section 32 was enacted in the context of risk and fiduciary duties as an advocate owes to the public in general and to his or her clients. He averred that section 32 is to enable young advocates get tutelage of senior advocates by ensuring that their legal work is reviewed by a senior advocate. It therefore prepares young advocates to discharge their calling. He also contended that the section does not prohibit an advocate with less than two years from practicing law. The relationship between the newly enrolled advocate and his supervisor is not involuntarily, there is a requirement for payment of services. He further denied that section 32 was discriminatory in terms of age. He contended that the section is concerned with experience, skills and competence.

The second respondent submitted that section 32 conforms to section 7(1) of the Sixth Schedule of the Constitution and also Articles 21, 22, 23 and 46 which infuse professionalism and professional responsibility within the legal profession.

On the issue of advertising in rule 2 of the Advocates (Practice) Rules, the first respondent’s position was that it is not unconstitutional. He stated that the rule was authorized by the Council of Law Society of Kenya exercising its statutory power to regulate the profession and therefore it should be given the liberty to change the rule should it require.

Findings
The court held that section 32 can hardly be termed as slavery or forced labour for several reasons. First, the pursuit of a legal career is a voluntary act and those who join it do so out of choice and therefore agree to abide by the terms of engagement which are regulated by statute. On the penalty issue, the court found that its imposition is not to force the newly admitted advocate to work but it is a penalty for non- compliance with the section. Therefore, the court held that section 32 is not in violation of Article 30 of the Constitution.

On the issue of whether rule 2 of the Advocates Practice Rules being unconstitutional, the court was of the opinion that it is becoming clear that the prohibition of advertising has come under considerable challenge both locally and internationally. That in order to achieve a just society that meets the expectations of Kenya, legal services offered by advocates must be available and the people must have the necessary information to access these services, a ban on advertising by advocates is inimical to these broad objectives of the Constitution.
Hence, the court concluded that Rule 2 of the Advocates (Practice) Rules made under the Advocates Act in so far as to constitute a complete ban on advertising by advocates is inconsistent with the provisions of Article 46(1) and 48 of the Constitution.

The Community Service Orders Act - Appointment.
The State Corporations Act - Appointment.
The Labour Relations Act - Deduction of Agency Fees, etc. .
The Children Act - Appointment.
The Law of Succession Act - Appointment
The Registration of Titles Act - Issue of Provisional Certificates, etc.
The Registered Land Act - Issue of a New Certificate of Lease, etc.
The Land Acquisition Act - Intention to Acquire Land, etc.
Customs Services Department - Goods to be Sold at Customs Warehouse, J.K.I.A., etc.
The Valuers Act - Registered and Practising Valuers.
Probate and Administration.
The Political Parties Act - Full Registration of Political Parties.
The Records Disposal (Courts) Rules - Intended Destruction of Court Records.
The Mining Act - Application for a Special Licence.
The Co-operative Societies Act - Appointment of Liquidators.
The Physical Planning Act - Completion of Part Development Plans.
The Environmental Management and Co-ordination
Act - Environmental Impact Assessment Study Reports
Local Government Notices.
Business Transfer.
Disposal of Uncollected Goods.
Loss of Share Certificates, etc.
Change of Names.

SPECIAL NOTICE
AS Friday, 6th April, 2012, will be a public holiday, the Kenya Gazetteissue that should have been published on that date will now be published on Thursday, 5th April, 2012.

A. G. RUKARIA,Government Printer.

Selected Gazette NoticesGAZETTE NOTICE NO. 3975THE COMMUNITY SERVICE ORDERS ACT(No. 10 of 1998)THE NATIONAL COMMUNITY SERVICE ORDERSCOMMITTEEAPPOINTMENT

IN EXERCISE of the powers conferred by section 7 (1) (l) of the Community Service Order Act, the Vice-President and Minister for Home Affairs appoints -

IN EXERCISE of the powers conferred by section 49 (1) of the Labour Relations Act (No. 14 of 2007), the Minister for Labour makes the following order:

(a) Kofinaf Company Limited, Sasini Limited, Tropical Farm Management Service and Coffee Management Service to deduct 2% of the basic salary each month from each unionisable employee who is not a member of the Kenya Plantation and Agricultural Workers Union herein referred to as the "Union" but is benefiting from terms and conditions of the Collective Bargaining Agreement between the named companies and the Kenya Plantation and Agricultural Workers Union.(b) Deduction to commence within thirty (30) days of receiving the Order.(c) To remit within ten (10) days the sums deducted under item (a) by crossed cheques made payable to the union into the union’s account No.002019732300 at National Bank of Kenya Limited, P.O. Box 1161–20100, Nakuru Branch.

IN EXERCISE of the powers conferred by section 48 (1) of the Labour Relations Act (No. 14 of 2007), the Minister for Labour makes the following Order:(a) Orders every employer who employs not less than five (5) members of the Kenya Union of Export and Imports Workers -
(i) to deduct every month the sums specified in the schedule in respect of trade union dues from the wages of his/her employees who are members of that union;
(ii) to pay within ten (10) days of the date of deductions, the total sums of deducted under item 1 of the schedule by crossed cheque made payable to the Kenya Union of Exports and Imports Workers, into that Union’s account No. 011–278–6000 at Diamond Trust Bank, Nation Centre Branch, Kimathi Street, Nairobi;
(iii) to pay within ten (10) days of the date of deduction, the total sums so deducted under item 2 of the schedule, by crossed cheque made payable to the Central Organization of Trade Unions (K) into that Organization’s Account No. 229–741–204 at the Kenya Commercial Bank Limited, Moi Avenue Branch, Nairobi.
(iv) To notify that trade union and the organization in writing within one (1) month of the payment;
(v) make written returns to the Registrar of Trade Unions within one (1) month of making all the payments to the trade union and to that organization.

SCHEDULEDeductions:
1. A sum of two per cent (2%) from each employees basic pay per month.
2. A sum of Kenya shillings one hundred (KSh. 100) per employee per months.

Dated the 21st March, 2012.

JOHN MUNYES,Minister for Labour.
MR/9116269

GAZETTE NOTICE NO. 3979THE CHILDREN ACT(No. 8 of 2001)APPOINTMENT

IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children Act, the Chief Justice appoints - EVANS MULEKA
Resident Magistrate, to preside over cases involving children in the area of jurisdiction of his current court station and future stations deployed to from time to time with effect from 1st April, 2012.

Dated the 27th March, 2012.

WILLY MUTUNGA,Chief Justice/President Supreme Court of Kenya.

GAZETTE NOTICE NO. 3980THE LAW OF SUCCESSION ACT(Cap. 160)APPOINTMENT

IN EXERCISE of the powers conferred by section 47 of the Law of Succession Act, the Chief Justice appoints -

CHARLES ARIBA KUTWA

Senior Resident Magistrate, to represent the High Court in succession matters in the area of jurisdiction of his current court station and future magistrate stations deployed to from time to time with effect from 1st April, 2012.

GAZETTE NOTICE NO. 4285THE POLITICAL PARTIES ACT(No. 11 of 2011)FULL REGISTRATION OF A POLITICAL PARTY

IN EXERCISE of the powers conferred by section 5 (4) of the Political Parties Act, 2011, the Registrar of Political Parties gives notice that:

KENYA NATIONAL CONGRESS (KNC)

has applied for full registration under section 7 of the Political Parties Act, 2011 with the symbol:
KEY
And the party colours:
BLACK, RED, GREEN AND YELLOW

Any person or any other political party with objections to the registration of the name, symbol or colour of the party or any other issue relating to the registration of the political party shall within 7 days make their written submissions to the Registrar of Political Parties.

Further enquiries can be made through the Registrar’s Offices, Anniversary Towers, University Way, 21st Floor P.O. Box 45371 – 00100, Nairobi, from 8.00 a.m. to 5.00 p.m. weekdays.

Dated the 28th of March, 2012.

L. K. NDUNGU,Registrar of Political Parties.
MR/9116499

GAZETTE NOTICE NO. 4286THE POLITICAL PARTIES ACT(No. 11 of 2011)FULL REGISTRATION OF A POLITICAL PARTY

IN EXERCISE of the powers conferred by section 5 (4) of the Political Parties Act, 2011, the Registrar of Political Parties gives notice that:

MAZINGIRA GREENS PARTY

has applied for full registration under section 7 of the Political Parties Act, 2011 with the symbol:

TREE

And the party colours:
RED, BLACK & GREEN

Any person or any other political party with objections to the registration of the name, symbol or colour of the party or any other issue relating to the registration of the political party shall within 7 days make their written submissions to the Registrar of Political Parties.

Further enquiries can be made through the Registrar’s Offices, Anniversary Towers, University Way, 21st Floor P.O. Box 45371 – 00100, Nairobi, from 8.00 a.m. to 5.00 p.m., weekdays.

Dated the 28th of March, 2012.

L. K. NDUNGU,Registrar of Political Parties.
MR/9116499

GAZETTE NOTICE NO. 4287THE POLITICAL PARTIES ACT(No. 11 of 2011)FULL REGISTRATION OF A POLITICAL PARTY

IN EXERCISE of the powers conferred by section 5 (4) of the Political Parties Act, 2011, the Registrar of Political Parties gives notice that:

WIPER DEMOCRATIC MOVEMENT KENYA (WDMK)

has applied for full registration under section 7 of the Political Parties Act, 2011 with the symbol:

FULLY OPENED UMBRELLA

And the party colours:

SKY-BLUE, WHITE AND EARTH RED
Any person or any other political party with objections to the registration of the name, symbol or colour of the party or any other issue relating to the registration of the political party shall within 7 days make their written submissions to the Registrar of Political Parties.

Further enquiries can be made through the Registrar’s Offices, Anniversary Towers, University Way, 21st Floor P.O. Box 45371 – 00100, Nairobi, from 8.00 a.m. to 5.00 p.m., weekdays.

Dated the 28th of March, 2012.

L. K. NDUNGU,Registrar of Political Parties.
MR/9116499

GAZETTE NOTICE NO. 4288THE POLITICAL PARTIES ACT(No. 11 of 2011)FULL REGISTRATION OF A POLITICAL PARTY

IN EXERCISE of the powers conferred by section 5 (4) of the Political Parties Act, 2011, the Registrar of Political Parties gives notice that:

DEMOCRATIC PARTY OF KENYA (DP)

has applied for full registration under section 7 of the Political Parties Act, 2011 with the symbol:
LANTERN

And the party colours:
AMERALD GREEN, WHITE AND TRIVOLI GOLD

Any person or any other political party with objections to the registration of the name, symbol or colour of the party or any other issue relating to the registration of the political party shall within 7 days make their written submissions to the Registrar of Political Parties.

Further enquiries can be made through the Registrar’s Offices, Anniversary Towers, University Way, 21st Floor P.O. Box 45371 – 00100, Nairobi, from 8.00 a.m. to 5.00 p.m., weekdays.

Dated the 28th of March, 2012.

L. K. NDUNGU,Registrar of Political Parties.
MR/9116499

GAZETTE NOTICE NO. 4289THE POLITICAL PARTIES ACT(No. 11 of 2011)FULL REGISTRATION OF A POLITICAL PARTY

IN EXERCISE of the powers conferred by section 5 (4) of the Political Parties Act, 2011, the Registrar of Political Parties gives notice that:

NATIONAL DEMOCRATIC MOVEMENT

Has applied for full registration under section 7 of the Political Parties Act, 2011 with the symbol:

GREEN COMPASS
And the party colours:
GREEN
Any person or any other political party with objections to the registration of the name, symbol or colour of the party or any other issue relating to the registration of the political party shall within 7 days make their written submissions to the Registrar of Political Parties.

Further enquiries can be made through the Registrar’s Offices, Anniversary Towers, University Way, 21st Floor P.O. Box 45371 – 00100, Nairobi, from 8.00 a.m. to 5.00 p.m., weekdays.

IN ACCORDANCE with the Records Disposal (Courts) Rules, notice is given that three (3) months after the date of publication of this notice, the Chief Magistrate’s Court at Nakuru, intends to apply to the Chief Justice, for leave to destroy the records, books and papers of the Chief Magistrate’s Court at Nakuru as set out below:

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed G20 Amboseli Golf Resort, Hotel and SPA.

The proposed development will include putting up a Golf Resort and SPA. Upon completion, the Golf Resort and Spa will comprise of 100 rooms Golf hotel, 300pax conference facility, a Spa, shareholders’
cottage, club house, water pans/small dams and staff quarters. The proposed Golf Resort and SPA project will be on land parcel number Kajiado/Kaputiei South/2694.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed construction and operations of carneval village apartments.

The proposed development will include construction and availing luxurious residential houses in the environs of Tudor creek in Mombasa. The project will involve the construction of six (6) floor flat house at the Tudor creek on a plot measuring 0.1598 hectares. It will further involve an excavation to create three lower ground floors. The proposed luxurious residential houses will be on land parcel L.R. No. MN/I/7664 Kisauni District, Mombasa County.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed Maragua dam.

The proposed dam is an embankment dam with a maximum height of 100m. The reservoir is projected to cover an area of 4km2 and will impound 100hm3 at its Normal Water Level (NWL). In addition to storing flood flow from the Maragua and Gikigie Rivers, a transfer tunnel has been proposed to transfer water from South Mathioya River to the dam. The length of this tunnel is approximately 3km.

The proposed Maragua Dam is located about 200km North of Nairobi the Capital City of Kenya. The study area administratively falls within the Muranga County and the dam site is approximately 1668m above sea level. The proposed project is likely to affect three Districts namely Kahuro, Kangema and Kigumo. In Kahuro District the affected location is Kionjoini and particularly Gatarasub location while in Kangema District the affected locations are Kiruri and Ichichi, mainly Karura and Ichichi sub locations and a few plots in Kiruri sublocation. In Kigumo District the affected location is Kinyona particularly in Gacharage sub location.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed 100MW wind energy project.

The primary components of the proposed project will include the construction of a wind energy facility including up to sixty seven (67) wind turbines, one on-site sub-station, underground electrical cabling between turbines and the sub-station, internal access roads and an office/maintenance building on the facility site. Each turbine will be 1.6MW in capacity. The proposed project will be on a land area of about 70km2 within the Esilanke area, Oloyangani (Kipeto) sub-location, south Keekonyokei location in Kiserian, Kajiado District.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

GAZETTE NOTICE NO. 4299THE LOCAL GOVERNMENT ACT(Cap. 265)THE MUNICIPAL COUNCIL OF NYERIFEES AND CHARGES

IN EXERCISE of the powers conferred by section 148 of the Local Government Act, the Municipal Council of Nyeri has with the approval of The Deputy Prime Minister and Minister for Local Government imposed the following fees and charges with effect from 19th March, 2012.